This Criminal Appeal has been filed under
Section 374 of Cr.P.C. against the judgment of conviction
dated 30.11.2015 passed by Special Sessions Judge, Barwani
in Special Sessions Trial No.47/2015; whereby learned
Additional Sessions Judge found appellant guilty for the
offences punishable under Section 376 of IPC and 3/4 of
Protection of Children from Sexual Offences Act, 2012 and
sentenced him to undergo 10 years rigorous imprisonment
with fine of Rs.500/- and in default of payment of fine he

-: 2:- Cr.A.No.363 of 2016

was to undergo one year’s rigorous imprisonment and 10
years’ rigorous imprisonment with fine of Rs.200/- and in
default of payment of fine he was to undergo one year’s
rigorous imprisonment respectively.

[2] Brief facts of the prosecution case are that on
14.05.2015 at 7.00 p.m. at Village Hatvadi, Rajpur, the
prosecutrix (PW-1) (name and identity of the prosecutrix
imposed by law contained in Section 228-A of IPC is not
disclosed) had gone to the house of Bhagirath (PW-4) to get
milk. After taking milk, on the way to her house when she
passed from in front of appellant Mangilal’s house, appellant
was standing there on the street. He forcibly caught her and
shut her mouth by hand and took her to a nearby vacant
house of Vinod where appellant put off prosecutrix’s
leggings and threatened to kill her if she shouted and then
committed rape with her. At that time her mother Bansibai
(PW-2) along with Bhuribai (PW-3) came there in search of
her daughter. On seeing them appellant fled away from the
spot. Bansibai tried to catch him, but he escaped. At that
time prosecutrix’s brother Jitendra and neighbour Harisingh
also came there and saw appellant Mangilal running from
the spot. Thereafter Bansibai (PW-2) took prosecutrix to
home where she narrated the whole incident to her mother
Bansibai. Then they went to Police Station Rajpur, District
Barwani where prosecutrix lodged the FIR (Ex.P/1). On that
report police registered Crime No.225/2015 against the
appellant for the offence punishable under Section 376 and
506 of IPC and Section 3/4 of the Protection of Children
from Sexual Offences Act and investigated the matter.

-: 3:- Cr.A.No.363 of 2016

During investigation prosecutrix was medically examined by
Dr. Meenakshi Chouhan (PW-6), who gave MLC report
(Ex.P/14). She also prepared slide of vaginal discharge of
prosecutrix and also seized her pubic hair and legging and
sent it to the Police Station in a sealed packet along with seal
impression which were also seized by Head Constable
Ramesh Pandey, who prepared seizure memo (Ex.P/10). The
statements of prosecutrix (PW-1), her mother Smt. Bansibai
(PW-2), Bhuribai (PW-3) and Bhagirath (PW-4) were also
recorded and appellant/accused Mangilal was arrested on
16.05.2015 and arrest memo (Ex.P/8) was prepared. He was
also medically examined, where he was found capable of
doing intercourse. Doctor also seized underwear of accused
and also prepared slide of his semen and after packaging it
sent them to P.S. Rajpur where after seizing of that article
seizure memo (Ex.P/11) was prepared. The seized articles
were sent for examination to Regional Forensic Science
Laboratory along with draft (Ex.P/12). After investigation
police filed charge-sheet against appellant/accused
Mansingh before the Judicial Magistrate First Class, who
committed the case to the Court of Sessions. On that charge-
sheet Special S.T.No.47/15 was registered. First Additional
Sessions Judge, Barwani framed charge against appellant for
the offences punishable under Sections 376 and 506 Part-II
of IPC and Section 3/4 of the Protection of Children from
Sexual Offences Act and tried the case. The
appellant/accused abjured the guilt and took the defence that
he had falsely been implicated in the case. The prosecution
produced as many as 6 witnesses to prove its case, however,

-: 4:- Cr.A.No.363 of 2016

after trial learned Additional Sessions Judge acquitted the
appellant from the charge under Section 506 Part-II of IPC
but found appellant guilty for the offences under Section 376
of IPC and 3/4 of the Protection of Children from Sexual
Offences Act and sentenced him as aforesaid. Being
aggrieved with the same appellant has filed this Criminal
Appeal.

[3] Learned counsel for the appellant submitted that
learned trial court only on the basis of statements of
prosecutrix (PW-1) and her mother Bansibai (PW-2) found
appellant guilty while there are many contradictions and
omissions and discrepancies in their statements. Their
statements are also not supported by the independent
witnesses Bhuribai (PW-3) and Bhagirath (PW-4).
Prosecutrix’s statement is not even corroborated by the
statement of Dr. Meenakshi Chouhan (PW-6), who examined
prosecutrix after the incident. From the statement of
Bansibai (PW-2)it also appeared that she is not having good
character and that appellant had supplied two tractor loads of
fire wood to Bansibai (PW-2), mother of the prosecutrix and
as price of the fire wood was not paid by them despite
demand made by the appellant, so appellant has been falsely
implicated in the matter. Learned trial court without
considering these facts wrongly found the appellant guilty
for the offences punishable under Section 376 of IPC and
Section 3/4 of the Protection of Children from Sexual
Offences Act.

[4] On the other hand, learned counsel for the
respondent/State submitted that from the statement of

-: 5:- Cr.A.No.363 of 2016

prosecutrix (PW-1), which is also corroborated by the
statement of Bansibai (PW-2), mother of the prosecutrix, it is
clearly proved that at the time of incident appellant
committed rape with the prosecutrix, who was minor then.
So learned trial court rightly found appellant guilty for the
aforesaid offences.

[5] Point of determination in this appeal is whether
the conviction and sentence awarded by the trial court to the
appellant under Section 376 of IPC and Section 3/4 of the
Protection of Children from Sexual Offences Act are liable
to be set aside for the reason stated in the memo of appeal
and raised during arguments.

[6] As regards the age of the appellant at the time of
incident prosecution produced no documentary evidence.
Learned trial court only on the basis of statement of mother
of the prosecutrix and ossification test report which was
produced by the prosecution along with charge-sheet but not
exhibited found prosecutrix’s age to be below 18 years but in
this regard finding of trial court does not appear to be
correct. Although Bansibai (PW-2), mother of the
prosecutrix deposed that at the time of incident prosecutrix
was 13 years of age but in her cross-examination she clearly
admitted that she stated prosecutrix’s age based only on a
conjecture, so prosecutrix’s age cannot be assessed only on
the basis of statement of Bansibai (PW-2). Although Dr.
Meenakshi Chouhan (PW-6), who medically examined
prosecutrix, also mentioned her age as 13 years in her report
(Ex.P/14), but she advised ossification test for verification of
age of the prosecutrix which shows that she also mentioned

-: 6:- Cr.A.No.363 of 2016

prosecutrix’s age 13 years based on a conjecture. No
conclusion regarding age of the prosecutrix can be based
only on that report also.

[7] On the contrary in ossification test report which
was though not exhibited by the prosecution but since that
report was produced by the prosecution along with charge-
sheet which shows prosecution relied on that report, so that
report can be considered without it having been exhibited.
There it is mentioned that approximate age of prosecutrix
was about 16 to 18 years. Out of it only that age would be
considered which is in favour of the appellant/accused. So
from the ossification test report prosecutrix’s age at the time
of incident appears to be 18 years. Learned trial court also
held in its judgment that based on that report prosecutrix
appeared to be about 18 years of age at the time of incident.

[8] Even if it is assumed that prosecutrix was 18
years of age at the time of incident then it cannot be said that
she was minor because according to Section 2-D of the
Protection of Children from Sexual Offences Act “child”
means any person below the age of 18 years while from the
ossification test report the age of the prosecutrix appeared 18
years at the time of incident. So in the considered opinion of
this court learned trial court committed mistake in finding
appellant minor (child) at the time of incident. This court
holds that appellant was major at the time of incident and her
age was 18 years at the time of incident. So provisions of
Protection of Children from Sexual Offences Act cannot be
attracted against appellant as they are only attracted if
prosecutrix were below the age of 18 years.

-: 7:- Cr.A.No.363 of 2016

[9] In the considered opinion of this court learned
trial court wrongly found appellant guilty for the offence
punishable under Section 3/4 of the Protection of Children
from Sexual Offences Act.

[10] As regard the point that whether on 14.05.2015,
at 7.00 p.m., at Village Hatvadi appellant committed rape
with her. Prosecutrix (PW-1) clearly deposed that she knew
appellant. On the date of incident at 7.00 p.m. when she was
returning to her home from Bhagirath’s house after taking
milk in kettle, on the way appellant came and shut her mouth
and forcibly took her to Vinod’s house nearby where
appellant put her leggings forcibly off and committed rape
with her. Her brother Jitendra, mother Bansibai and Bhuribai
came there in search of her. On seeing them appellant ran
away. Her mother Bansibai tried to catch him but he
escaped. Her mother took her home. Her statement was also
corroborated from the FIR (Ex.P/1) which was lodged by her
at P.S. Rajpur regarding incident which was also proved by
Kavita Alava (PW-5) the then Sub Inspector of P.S. Rajpur,
District Barwani and from the statement of her mother
Bansibai (PW-2), who also clearly deposed that on the date
of incident at 6.30 p.m. her daughter (prosecutrix) went to
Bhagirath’s house for taking milk and when she did not
return for long she went to Bhagirath’s house to search her.
Bhagirath told her that prosecutrix had come to his house for
taking milk but she returned after taking milk. After
searching for some time she found her daughter in Vinod’s
house. Prosecutrix told her that appellant committed rape
with her then she took prosecutrix at P.S. Rajpur where

-: 8:- Cr.A.No.363 of 2016

prosecutrix lodged the report.

[11] Although Bhuribai (PW-3) and Bhagirath (PW-4)
did not support the prosecution story but they are not eye
witness of the incident. statement of prosecutrix regarding
incident cannot be discarded only on the ground that they
did not support the prosecution story. Also Only on the
ground that mother of the prosecutrix was not having good
character it cannot be presumed that prosecutrix lodged false
report against appellant. Generally no person would like to
put the prestige and reputation of her daughter at stake by
making false allegation of rape. Regarding rape there is no
important contradiction and omission in prosecutrix’s
statement on the basis of which her statement could be
disbelieved. Although Bansibai (PW-2) admitted in her
cross-examination that she sold illegal liquor in her house
and residents of Rajpur came to her house for drinking
illegal liquor. They sat in her house and police also punished
her in criminal case of selling illegal liquor but only on that
ground that mother of the prosecutrix sold illegal liquor, her
statement regarding incident cannot be discarded. Apex
Court in the case of State of Haryana V/s. Premchand and
others reported in 1990 SC 538 held that,
“Character and reputation of victim are
alien to the scope and object of Section 376 of
IPC. The character of prosecutrix has no
relevance in the matter of adjudicating the guilt
of the accused or on quantum of punishment.”
[12] Although prosecutrix (PW-1) also admitted in her
cross-examination that appellant had supplied two tractor
loads of firewood to her but clearly denied from the
suggestion that she had falsely implicated the appellant as

-: 9:- Cr.A.No.363 of 2016

the price of the firewood was not paid by them despite
demand made by the appellant. Prosecutrix also denied from
the fact that she lodged false report against the appellant at
the instance of her mother.

[13] Learned counsel for the appellant also submitted
that Dr. Meenakshi Chouhan (PW-6), who examined
prosecutrix soon after the incident clearly deposed in her
cross-examination that she did not find any injury on her
body at the time of incident. She also mentioned in her
report (ExP14) that no definite opinion can be given
regarding rape with prosecutrix. Had appellant committed
aforesaid intercourse with the prosecutrix then there would
have been injuries on her body. But this argument also does
not appear to be correct. Absence of injury either on the
body of the prosecutrix or on the accused is not by itself
sufficient to hold that the prosecutrix was a consenting party.

[14] Hon’ble Apex Court in the case of Omprakash
Vs. State of U.P. reported in 2006 AIR SCW 2814 held that,
“In a given case if the Doctor, who
examined the victim does not find sign of rape,
it is no ground to disbelieve the sole testimony
of prosecutrix.”

On the contrary Dr. Meenakshi Chouhan (PW-6)
who conducted the medical examination of prosecutrix on
15/5/15 at 11;30 am in her examination in chief clearly
deposed that at the time of examination of prosecutrix she
found tear of 1/2 cm. in 6 O’Clock position at her perennial
region duration of that injury within 24 hour from the
examination and incident occurred on 14/05/15 at 07;30 pm.
So her statement also corroborates prosecutrix’s statement

-: 10:- Cr.A.No.363 of 2016

that appellant committed rape with her.

[15] Learned counsel for the appellant also submitted
that adverse inference be drawn against the prosecution
since they did not produce FSL report. But this argument
also has no force. The FSL report is only a corroborative
piece of evidence where statement of prosecutrix is
trustworthy and reliable. There is no effect of not producing
FSL report and only on that ground prosecutrix’s statement
cannot be discarded.

[16] There is no rule or law that evidence of
prosecutrix cannot be relied unless corroborated. So there is
no reason to disbelieve prosecutrix’s statement which is also
corroborated by the statement of her mother and other
evidence that appellant committed rape with her.

[17] In the considered opinion of this court, trial court
did not commit any mistake in finding appellant guilty for
the offence punishable under Section 376 of IPC.

[18] Although it appears from the above discussion
that prosecutrix was 18 years of age at the time incident and
was not a child so appeal is partially allowed and conviction
of appellant for the offence punishable under Section 3/4 of
the Protection of Children from Sexual Offences Act is set
aside. As far as sentence regarding Section 376 of IPC is
concerned learned trial court has sentenced appellant under
Section 376 of IPC to undergo 10 years rigorous
imprisonment with fine of Rs.200/-, but for offence under
Section 376 of the IPC minimum sentence is prescribed as 7
years and no antecedent was reported against appellant so

-: 11:- Cr.A.No.363 of 2016

looking to the facts and circumstances of the case it is
appropriate that jail sentence of appellant be reduced to 7
years.

[19] Accordingly the appeal is partly allowed and
conviction and sentence of appellant for the offence
punishable under Section 3/4 of the Protection of Children
from Sexual Offences Act is set aside and jail sentence under
section 376 of IPC reduced from 10 years R.I. to 7 years R.I.
The period already undergone be setoff from the jail
sentence. Appellant is in jail and shall undergo remaining
part of sentence.